Rakesh Kumar vs The State & Anr.
2014 Latest Caselaw 2308 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 25th APRIL, 2014
                                     DECIDED ON : 7th MAY, 2014

+            CRL.A.573/2012 & CRL.M.B.No. 392/2014

      RAKESH KUMAR                                       ..... Appellant

                           Through :   Mr.Rajiv Sirohi, Advocate with
                                       Mr.Rambir Singh Kundu,
                                       Advocate.
                           versus

      THE STATE & ANR.                                   ..... Respondents

                           Through :   Mr.Lovkesh Sawhney, APP.


+            CRL.A.574/2012 & CRL.M.B.No. 1144/2013

      JOGINDER SINGH                                     ..... Appellant

                           Through :   Ms.Mallika Parmar, Advocate.
                           versus

      THE STATE & ANR.                                   ..... Respondents

                           Through :   Mr.Lovkesh Sawhney, APP.

AND
+            CRL.A.575/2012

      K.DEEP SINGH                                       ..... Appellant

                           Through :   Mr.Rajiv Sirohi, Advocate with
                                       Mr.Rambir Singh Kundu,
                                       Advocate.

Crl.A.No.573/2012 to 575/2012                                  Page 1 of 12
                            versus

      THE STATE & ANR.                                     ..... Respondents

                           Through :   Mr.Lovkesh Sawhney, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants, Rakesh Kumar (A-1), Joginder Singh (A-2)

and K.Deep Singh (A-3) question the correctness and legality of a

judgment dated 02.03.2012 of Addl. Sessions Judge in Sessions Case No.

07/11 arising out of FIR No. 251/10 PS Kashmere Gate by which they

were convicted under Sections 365/392/307/34 IPC. A-1 and A-2 were

further convicted under Section 397 IPC. By an order dated 12.03.2012,

they were awarded various prison terms with fine.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet, was that on 20.12.2010 at around 06.30 P.M. in front of Star

Banquet Hall, near Metro Gate No.1, the appellants in furtherance of

common intention kidnapped Sanjay Kumar at knife point and took him to

Bawana canal. After inflicting injuries by a knife and depriving him of

Accent car bearing No.DL 8SW 0011, cash ` 2,200/- and two mobile

phones, they threw him in the canal in an attempt to murder him. The

police machinery was set in motion when the incident was reported and

Daily Diary (DD) No. 26A (Ex.PW-2/A) was recorded at 20.54 hours at

PS Kashmere Gate. The victim was taken to Sonipat Hospital where he

was medically examined vide MLC (Ex.PW-6/A). The First Information

Report was lodged on 26.12.2010 after recording complainant - Sanjay

Kumar‟s statement (Ex.PW-1/A). On 10.01.2011, the appellants were

arrested at around 07.30 P.M; an air pistol from the left-side dub of A-2; a

mobile phone make Nokia-1209 from A-3 were recovered. Pursuant to A-

1‟s disclosure statement, CNG kit fitted in the robbed car was recovered

from his residence. Statements of the witnesses conversant with the facts

were recorded. After completion of investigation, a charge-sheet was

submitted against the appellants; they were duly charged and brought to

trial. The prosecution examined nine witnesses to substantiate the charges.

In 313 statements, the appellants denied their complicity in the crime and

pleaded false implication without examining any witness in defence. The

trial resulted in their conviction as aforesaid. Being aggrieved and

dissatisfied, they have preferred the appeals.

3. I have heard the learned counsel for the parties and have

examined the record. The incident took place on 20.12.2010 at around

06.30 P.M. and the information was conveyed in promptitude to the

police. Daily Diary (DD) No. 26A (Ex.PW-2/A) was recorded at 8.54

P.M. by PW-2 (HC Rajesh Kumar), Duty Officer, Kashmere Gate about

the snatching of the car and taking it away along with the driver at

revolver point. It appears that no sincere efforts were made by the police

of Kashmere Gate to find out the culprits. PW-5 (SI Purshottam) to whom

the investigation was assigned merely went to the spot and finding no eye

witness returned to the police station. He did not explain as to what steps

were taken by him to find the whereabouts of the victim. It shows casual

approach of the concerned Investigating Officer in the investigation of the

case. Despite specific information with the police, no concrete steps were

taken to investigate it.

4. On 26.12.2010, the victim Sanjay Kumar recorded statement

(Ex.PW-1/A) and gave detailed account as to how and under what

circumstances, he was abducted by the assailants while they were armed

with pistol/knife and inflicted injuries to him in the car. He further

disclosed that attempt was made by the assailants to throw him in the river

/ canal after robbing him of his car, mobile phones and cash ` 2,200/-.

While appearing as PW-1, the complainant identified the appellants as

assailants who had abducted him on 20.12.2010 at 06.30 P.M. when he

was waiting outside Star Banquet Hall, Metro Station, Kashmere Gate

while sitting in the car No. DL 8SW 0011, Accent, black colour belonging

to his employer Anil Kumar Sharma, Advocate. He further deposed that in

the meanwhile, an individual came and knocked the window pane. When

he opened the window pane assuming that the individual must be asking

for the way / direction, the said man put revolver on his head and

assaulted him on his left hand by a knife. He was pushed inside the car

and his associates caught hold of him from behind. He identified A-1 to be

the assailant who had put revolver on his head; A-2 and A-3 had caught

hold of him in the car. He further testified that A-2 and A-3 took out his

mobile phones and purse which contained ` 2,200/-. He was assaulted and

injured by a knife on his hands and feet on the rear seat. After abducting

him, the appellants stopped the car at Bawana road towards Sonipat near a

river; pulled him out of the car and threw him in the river having deep

water. When the assailants left the spot, he came out; stopped a

motorcyclist; requested him to call his employer Anil Kumar Sharma,

Advocate and reported the incident to him. He identified the mobile phone

robbed by the assailants. In the cross-examination, the witness was

confronted with the statement (Ex.PW-1/A) on certain facts which were

omitted therein. He disclosed that he was working with Anil Kumar

Sharma, Advocate for the last ten years. He was thrown in the river at

around 09.00 or 09.30 P.M. There was no light near the river and it was

complete dark. The motorcyclist to whom he requested to assist came

from Sonipat side. He was unable to disclose the number of the

motorcycle. He denied the suggestion that he had sold the car (Ex.P2)

without permission of his employer.

5. Scrutinizing the testimony of this crucial witness, it reveals

that despite searching cross-examination no material discrepancy could be

extracted to dent the version narrated by him before the Court. No ulterior

motive was assigned to the complainant for falsely implicating the

appellants with whom he had no prior acquaintance or animosity. There

are no valid reasons to discard the statement of the witness who reported

the incident in promptitude to the police without any delay. He identified

the appellants in the Court without hesitation and ascribed a specific and

definite role to each of them. He sustained injuries in the occurrence and

was taken to Sonipat hospital far away from the place of his abduction.

MLC (Ex.PW-6/A) records the arrival time of the patient at 10.45 P.M. in

casualty. It further records the alleged history of assault at Kashmere

Gate, Delhi. PW-6 (Dr.Deepak Arora) medically examined the victim and

found the following injuries on his body :

"1. 1 cm x 1 cm wound over the right thigh for which X-ray right thigh was advised and Ortho opinion was asked for.

2. 1 cm x 1 cm wound over the right knee for which X- ray right knee was advised and Ortho opinion was asked for.

3. 1 cm x 0.5 cm wound over the right hand for which X-ray right hand was advised and Ortho opinion was asked for.

4. 1 cm x 0.5 cm wound over the left hand for which X- ray left hand was advised and Ortho opinion was asked for."

In the cross-examination, the doctor disclosed that the injured

was brought to the hospital at about 10.45 P.M. by police officials of PS

Kundli, Sonipat, Haryana. The medical evidence fully corroborates the

ocular version narrated by the victim regarding his abduction and

infliction of injuries. There is no conflict between the two. It is true that

there is delay of about five days in lodging the First Information Report.

But for that, the complainant cannot be faulted. He had given due

intimation about the incident to the concerned Police Station Kashmere

Gate at the earliest and it was recorded by Daily Diary (DD) No. 26A

(Ex.PW-2/A) at 20.54 hours. Again, he had met the police officials at

Sonipat. They had taken him to the hospital where he was medically

examined. It appears that Sonipat police did not initiate any proceedings

as the incident did not occur in their jurisdiction. For lapses on the part of

the Investigating Officer, the cogent and reliable testimony of the

complainant cannot be discredited. He had no axe to grind to falsely

implicate the appellants with whom he had no ill-will or animosity.

6. The robbed vehicle was recovered from the possession of the

accused by the Special Staff West District, Delhi on 10.01.2011. They had

no concern with the FIR in question registered at PS Kashmere Gate.

After the arrest of the accused persons, their involvement in the present

case emerged and the intimation was given to the concerned Investigating

Officer. All the three accused persons were present inside the robbed

vehicle which was being driven by A-1. PW-3 (Cont.Devender) and PW-8

(SI Manoj Kumar) have given consistent version about the recovery of the

vehicle (Ex.P2) from the appellants‟ possession and their testimony

remained un-shattered in the examination. The appellants did not explain

as to how and under what circumstances, the vehicle which did not belong

to them came into their possession. The police is not expected to plant the

vehicle of substantial value on their own. In 313 statements, the appellants

for the first time pleaded un-believable defence. They claimed that on

08.12.2010, A-3 had come to Delhi; A-1 and A-2 had come at ISBT to

receive him. A-3 disclosed that on seeing him, A-1 screamed in

excitement. Four or five police officials apprehended and took them to the

police station where complainant was present. Police officials told them

that they have been implicated in a liquor case and assured that on

pleading guilty, they would be fined only. He confessed his fault of taking

liquor before the Magistrate. No such defence was taken by A-1 and A-2

though they claimed that they were falsely implicated. No such suggestion

was put to the prosecution witnesses in the cross-examination. It has come

on record that when the accused persons were produced before the Court

concerned for participation in Test Identification Proceedings, they

declined to participate. Ex.PW-4/B rather records that A-1 admitted his

guilt while declining to participate in the TIP Proceedings. Similar is the

plea by the other appellants. They failed to explain how and under what

circumstances, they admitted their guilt.

7. The prosecution has established beyond reasonable doubt that

the appellants sharing common intention abducted the complainant -

Sanjay Kumar and took him to Bawana canal. After depriving him of the

car and other valuable articles, he was abandoned there. Apparently, the

offences committed by the appellants were punishable under Sections

365/392/34 IPC. The prosecution was, however, unable to establish

beyond doubt that the appellants were liable to be convicted with the aid

of Section 397 IPC. In Daily Diary (DD) No. 26A (Ex.PW-2/A) there is

no mention if the victim was robbed of his vehicle No.DL 8SW 0011 at

revolver point. In Ex.PW-1/A, the complainant did not specifically

mention if any revolver was placed on his temple while abducting him. He

merely disclosed that it was some weapon like object. In his Court

statement, he described it as pistol. However, no such pistol or revolver

was recovered during investigation. After the arrest of the assailants on

10.01.2011 after a considerable delay of about twenty days, an air pistol

was allegedly recovered from the left side dub of A-2. It cannot be termed

a „deadly‟ weapon. The complainant disclosed that injuries were inflicted

to him by a knife. However, no such knife was recovered from the

possession of any of the accused persons. In the MLC (Ex.PW-6/A), the

injuries sustained by the victim were described to be caused by „blunt‟

object. It is not the prosecution case that only „blunt‟ side of the knife was

used to inflict injuries. The complainant did not describe the size and

dimension of the knife. Hence conviction with the aid of Section 397 IPC

cannot be sustained. Similarly, the evidence is lacking for conviction

under Section 307 IPC. In the complaint (Ex.PW-2/A), the victim merely

stated that after he was abducted, he was left near a canal at Sonipat.

There is no mention that he was thrown inside the river. Soon after the

complainant was abandoned near the canal he met one motorcyclist who

has not been examined. In the MLC (Ex.PW-6/A), the injuries found on

the body were not on vital organs. The complainant was fully conscious

and oriented. He was not hospitalized for any treatment. It cannot be

inferred that the injuries were caused with the avowed object or intention

to cause death. Conviction under Section 307 IPC is not permissible and is

set aside. In the light of above discussion, the appellants are held guilty

for committing the offence under Section 365/392/34 IPC. Their

conviction under Section 307/397 IPC is set aside.

8. All the appellants have been sentenced to undergo RI for four

years with fine ` 5,000/- under Section 365 IPC and RI for five years with

fine ` 10,000/- under Section 392 IPC each. A-1‟s nominal roll dated

06.03.2014 reveals that he has already undergone three years, one month

and twenty four days incarceration besides remission for eight months and

seven days as on 06.03.2014. It further reveals that he is not a previous

convict and is not involved in any other criminal case. His overall jail

conduct is satisfactory. He was aged about 21 years on the day of incident.

A-2‟s nominal roll dated 13.08.2013 reveals that he has already undergone

two years, seven months and eight days incarceration besides remission

for five months and eight days as on 20.08.2013. He is also not a previous

convict and is not involved in any other criminal case. His overall jail

conduct is satisfactory; he is a first offender and was aged about 21 years

on the day of incident. A-3‟s nominal roll dated 14.08.2012 shows that the

custody period already undergone is one year, seven months and eight

days besides remission for twenty days as on 20.08.2012. He is not a

previous convict and is not involved in any other criminal case; his overall

jail conduct is satisfactory; is a first offender and was aged about 22 years

on the day of incident. Taking into consideration all these mitigating

circumstances, the substantive sentence of the appellants is reduced to RI

for four years instead of five years under Section 392 IPC. Other terms

and conditions of the sentence order are left undisturbed.

9. Appeals stand disposed of in the above terms. Pending

applications also stand disposed of. Trial Court record be sent back

forthwith with the copy of the order. A copy of the order be sent to the

Superintendent jail for information.

(S.P.GARG) JUDGE MAY 07, 2014 / tr